1. Time recording sufficient to prove overtime hours
Until the decision of the Court of Appeal dated 12 January 2015 (number 40228), the simple provision of an excerpt from a time recording system was not sufficient to prove the exercise of overtime hours, given that the second condition, i.e. the express consent of the employer, could not be proven by such a document.

The Court of Appeal however decided that such an excerpt from a time recording system indicating more hours worked than determined by the employment contract is sufficient to prove overtime. The Court of Appeal underlined that the express consent of the employer is no longer an issue, as the employer used the time recording system for the control of the hours worked; therefore, the employer tacitly accepted that employees work overtime.

The Court of Appeal thus reversed the burden of proof in favour of the employees in a case where the employer uses a time recording system and should have known that employees also work overtime. It is therefore indispensable to survey the hours worked to avoid that actual hours worked exceed the initially agreed working time determined in the employment contract.

For the sake of completeness, it may be recalled that employers using a time recording system have to apply for an authorisation delivered by the National Commission for Data Protection (CNPD).

2. Work in Belgium (income tax)
In their meeting of 5 February 2015, Belgium and Luxembourg decided to apply a tolerance of 25 days for activities exercised in Belgium; the system will apply retroactively with effect as of 1st January 2015. The Belgian system will thus be similar to the German system, where we already apply a “de minimis” rule of 19 days.